Robyn Lee Fry v Jan McGufficke [1998] FCA 1499 (26 November 1998)

Last Updated: 30 November 1998

FEDERAL COURT OF AUSTRALIA

APPEAL - sufficiency of reasons for judgment - intuitive and global assessment of loss of future earning capacity - whether appropriate

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, cited

Mifsud v Campbell (1991) 21 NSWLR 725, cited

Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402, cited

ROBYN LEE FRY v JAN McGUFFICKE

AG 32 of 1998

BLACK CJ, FOSTER, MADGWICK, FINKELSTEIN AND DOWSETT JJ

26 NOVEMBER 1998

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	AG 32 of 1998

ON APPEAL FROM A FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	ROBYN LEE FRY APPELLANT
AND:	JAN McGUFFICKE Respondent
JUDGE(S):	BLACK CJ, FOSTER, MADGWICK, FINKELSTEIN, DOWSETT JJ
DATE OF ORDER:	26 NOVEMBER 1998
WHERE MADE:	SYDNEY

SHORT MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The appeal is dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	AG 32 of 1998

ON APPEAL FROM A FULL COURT OF SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	ROBYN LEE FRY APPELLANT
AND:	JAN McGUFFICKE Respondent

JUDGE(S):	BLACK CJ, FOSTER, MADGWICK, FINKELSTEIN, DOWSETT JJ
DATE:	26 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT: This is an appeal from a judgment of a Full Court of the Supreme Court of the Australian Capital Territory concerning the assessment of damages in an action for negligently caused personal injuries arising out of a motor vehicle accident. The Full Court unanimously dismissed an appeal by the appellant ("the plaintiff") from an assessment of damages by the Master. The appeal before us was limited to a consideration of the sum awarded for future economic loss.

The accident in which the plaintiff was injured occurred on 27 June 1988. She was then 24, and despite having had a history of intractable epilepsy of the petit mal variety, a qualified social worker. In the accident, she sustained injuries to her head and back.

Rejection of the plaintiff's main assertions

The plaintiff's primary contention involved the proposition that her injuries led to severe aggravation of her epilepsy such that she required a temporal lobectomy which was carried out in June 1989. There were some complications from this operation which required two later admissions into hospital and further surgical procedures. The lobectomy was a success in relation to the petit mal symptoms. However, in 1991 the plaintiff failed her first year examinations in Medicine, having enrolled that year in the Faculty of Medicine at Newcastle University. She again failed the following year; in February 1993 she was excluded from the course. Thereafter she obtained part time work as a social worker, averaging 15 hours per week as at the time of trial (which concluded on 17 June 1997). The plaintiff's case was that she had wished to become a medical practitioner and that she was disabled by the aftermath of the lobectomy operation from qualifying in medicine. By reason of the claimed aggravation of the epilepsy and the consequent necessity for operation, her case was that she had suffered a very large loss of earning capacity and that this was causally related to her injuries. The plaintiff tendered evidence from Dr Ewing, a neuropsychologist, that she had a degree of compromise of her higher order of intellectual functions resulting in "difficulties with planning, organising, utilising feedback, interpreting, subtlety and verbal expression" as well as some personality changes such as "reduced temper control and difficulty with initiative and general disorganisation". Dr Ewing expressed the view that the plaintiff's "organisational and expressive difficulties may also have been the central factors in her difficulties" with her studies towards a medical degree.

It was also claimed that the neck and lower back symptoms of which she complained after the accident were a factor in her inability to complete the medical studies.

The Master rejected this major claim.

Credibility Issues

Among other things, the Master concluded that:

"whether wilfully or for another reason, the plaintiff is not a reliable witness and where her version of events is inconsistent with contemporary records, I am not able to prefer her version of events."

Some of the inconsistencies between the plaintiff's evidence and the contemporaneous notes of events were of a strange character. For example, the plaintiff said that she was at the scene of the accident for four hours in an ambulance while the defendant, the driver of the car in which the plaintiff had been a passenger, was cut out of the wreck of the car. However, the contemporaneous records made it clear that the plaintiff had in fact spent very little time at the accident scene before an ambulance took her to hospital. Another instance was that the plaintiff told many doctors that she had bled from her ears and nose at the time of the accident. She believed that an orthopaedic surgeon had diagnosed a fracture of her skull because for a time it was thought that there may have been a leak of cerebro-spinal fluid from her nose. The supposed bleeding would of course suggest a major trauma to the head and would lend credence to the likelihood that the accident had involved major head trauma and led to the claimed aggravation of the epilepsy. However, none of the contemporaneous notes recorded any such bleeding. The Master understandably found it inconceivable that the plaintiff could have been so bleeding without there being a record of such obvious symptoms.

The Master stopped short, again understandably, having regard to the plaintiff's history, of a positive finding that she was consciously exaggerating her case.

The claim of aggravation of the epilepsy was rejected because the Master was not satisfied that the plaintiff had suffered significant head trauma nor that there had been any actual deterioration in the plaintiff's epilepsy after the accident. The plaintiff had been diagnosed in 1987 as having "intractable complex partial seizures (temporal lobe epilepsy)" and some consideration had been given before the accident to a temporal lobectomy, apparently as a treatment of last resort. Hence the Master found that the surgery was not linked to the accident and, insofar as difficulties with intellectual functioning had apparently contributed to her failing the medical studies, that contribution likewise could not be linked to the accident.

The Master also rejected the plaintiff's claim that her neck and back difficulties were another major factor preventing her from successfully completing her study in medicine. He found that the medical studies "did aggravate her neck and back pain, but I do not find that this was the reason for her failure to successfully complete her medical degree".

Findings as to the plaintiff's injuries and disabilities

In relation to the neck and back pain, the plaintiff, as the Master put it, "painted a grim picture" of its extent. She said that it had developed over the six months following the accident to the point where she was "in agony" with pain down both arms to the top of her hands and from her neck across her face to both sides of her forehead, with severe migraine headaches involving a sensation of blindness such that she would only "half see things" and that her condition had been unchanged since that time soon after the accident. As the Master said, it was "difficult to reconcile this evidence with the fact that the plaintiff has worked as a social worker for some years now, albeit for less than full hours, and with a degree of difficulty discernible to her colleagues".

The Master found that the plaintiff had suffered soft tissue injuries to her cervical spine and a disc lesion at the L5/S1 level. She had been an active young woman before the accident and was precluded from skiing and other activities on account of her ongoing neck and back pain. Such disability had caused her to gain weight as a result of inability to exercise properly. The Master accepted that her neck and back difficulties were productive of ongoing pain and would continue in the long term. He assessed general damages in the sum of $45,000. For a plaintiff who was 33 at trial, such an assessment implies a view, consistent with the Master's express findings, that the plaintiff would have permanent pain and discomfort but that the impact of this upon her ordinary activities, while significant, would be relatively minor.

In relation to economic loss, the Master found that the neck and back injuries had "impacted on her past income loss and will continue to impact on her future earnings". The plaintiff had a good deal of time off work after the accident on account of a combination of what was apparently regarded as "major whiplash injury", increased frequency of the epileptic seizures and then the lobectomy and its aftermath. By November 1989 the plaintiff had progressed sufficiently in her rehabilitation to start a return to work program and between February 1990 and August 1990 she worked 25 hours per week. After her medical studies, she did not again work for more than 15 to 18 hours per week, had some time off work altogether and, apparently from about the start of 1996, generally worked about 15 hours per week. For some months before the accident, the plaintiff had been working three hours a day on two days per week, five hours on a third day and, each second week, eight hours on a fourth day, to make an average of 15 hours per week.

The Master's conclusion was that "a precise mathematical model of her past earning loss was not feasible". In relation to such past loss he awarded her $30,000 inclusive of interest. This was on the basis that, during periods when she was not prevented from working due to unrelated conditions (no doubt principally the epilepsy and its treatment) or her medical studies, she was precluded by the neck and back injuries "from full time duties as a social worker, but that her limitations were not such as to limit her to a maximum of 15 hours per week".

It is to be observed that, having regard to the relatively high rates of interest commonly applied to assessments of past economic loss occurring in the late 1980s and early to mid 1990s, an estimate of the interest included in the $30,000 of some $6,000 (or somewhat more) would not be unreasonable.

In relation to future wage loss, the Master was satisfied that the plaintiff would continue to have difficulties but he said "I note however that she has in the past worked for up to 25 hours per week. I am not convinced that she is limited to her present 15 hours per week until normal retirement age". He noted, among other things, that a consultant in occupational medicine qualified by the defendant, Dr McGrath, had accepted that the plaintiff's physical problems relating to her neck and back injuries were likely to "reduce her work capacity". The Master rejected the opinions of the doctors on whom the plaintiff relied for the view that she was unable to work beyond her present hours because those opinions were dependant on the plaintiff's claims of pain. The Master said "I have had difficulty accepting the plaintiff on much of her evidence in this regard and have found her to exaggerate". He rejected the view urged by the other medical experts for the defendant that the neck and back injuries would not preclude her from pursuing, on a full time basis, her occupation as a social worker. The Master concluded:

"This seems to me to be an appropriate case taking into account all of the evidence for a buffer of modest but realistic proportions to reflect an ongoing limitation.

Taking into account all of the evidence I award a global buffer for future economic loss in the sum of $40,000."

Further insight into the Master's approach in the matter can be gained from his acceptance of a claim for "ongoing home-help" with heavy cleaning duties, at the rate of four hours per week for life. He said:

"Given the findings I have made about the plaintiff's condition, a finding of an ongoing need [for such assistance] at about the present level is made out."

Finally, dealing with a claim for an allowance for $50.00 per week into the future for ongoing massage, the Master said:

"As I have already indicated, I am not satisfied that the plaintiff's condition is as serious as she claims. I am not satisfied that an ongoing claim at this level is made out. While the weekly $50.00 massage is therapeutic, I am not satisfied that it is a justifiable claim on the defendant indefinitely ."

The Master made an allowance for such massage within a "global sum" for future out-of-pocket expenses of not more than about $4,500. That is consistent with the view that the plaintiff would need such massage from time to time in the future but not as frequently as had been contended.

Although the Master made no express finding, it seems that he accepted the plaintiff's evidence that she would have wished to work "until normal retirement age". We note that the Full Court took a different view as to whether the Master had accepted this.

Contentions on appeal

The grounds of appeal which were pressed were as follows:

"5. The Courts below erred in the exercise of their discretion in awarding a global buffer in the sum of $40,000 for future economic loss.

(a) In lieu of a more precise mathematical calculation based on the available evidence and referable to the master's finding in relation to the appellant's injuries, disabilities and capacity for work;

(b) Alternatively, in that the global buffer is inadequate, especially by reference to the findings of fact as to the applicant's incapacity for work and/or the uncontroverted evidence in respect thereto.

6. The Courts below failed to provide adequate reason in relation to the damages for future economic loss."

It is convenient to consider ground 6 first. The ground has its genesis, of course, in the obligation of a judge to give a reasoned decision. The failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 per McHugh JA and Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA. The extent of the obligation to give reasons based on particular findings of fact will depend upon the circumstances of each case. It is, however, only the critical or crucial reasoning that must be exposed: ibid. It is in that sense that what is sufficient will depend upon all the circumstances of the particular case.

The suggestion in argument was that the Master had failed adequately to expose his reasoning, particularly when the award in question is examined against the findings and awards in relation to past economic loss, future domestic assistance and ongoing medication.

It is true that some greater exactitude of expression might have been employed. For example, the reference to a "buffer" might have been otherwise expressed. Again, it might have been made clearer whether the Master did accept that the plaintiff would, but for the accident, have worked to normal retiring age, especially in the light of the medical evidence about her apparent psychological difficulties, and, judging by the transcript of the plaintiff's evidence, the obviousness of them. . (We think that, nevertheless, the reasonably available inference is that the Master did accept that she would have worked to normal retirement age). Further, this might be a case in which another judge might have sought, with whatever inexactitude was involved, to try to estimate the plaintiff's loss of earning capacity by way of estimating the number of hours per week which the plaintiff could work as a social worker, or by estimating a percentage loss of her capacity to earn what she would have been earning but for the accident.

However, regard must be had to the issues that were placed before the Master, the way in which this was done and the difficulties which confronted him. This was a difficult case. The plaintiff had impressive evidence in her history that she is a person of determination and fortitude. Equally there was cogent material to suggest that, from whatever causes, she had materially exaggerated important aspects of her case, including her impaired ability to work. The independent evidence of her colleagues, which the Master seems to have accepted, supports the view that the plaintiff had genuine pain and difficulty arising from the neck and back. However, it is not the only reasonable inference from such evidence that those difficulties were of such a nature that she could not now, or would not in the future be able to, work for significantly longer hours than she is now working. Having regard to the difficulties which confronted the Master and to his having understandably devoted the major part of his judgment to the rejection of the primary claims made by the plaintiff, his relative brevity in expressing his reasons on this aspect of the case is hardly a matter for legitimate criticism.

In these circumstances it seems to us that the process of the Master's reasoning is sufficiently clear. He accepted that, despite exaggeration, the plaintiff had ongoing limitations. He accepted that these were real but comparatively "modest": he felt that the assessment should be for a sum of "modest but realistic proportions to reflect an ongoing limitation". Whereas this view might have been expressed differently or the assessment might have been more fully articulated in one of the ways we have mentioned or otherwise, the effect would not have been different. Nor essentially would there have been any further illumination of the Master's reasoning process. It seems to us from his reasons that the Master was left in the position where he felt it inappropriate to attempt intermediate quantifications of the kinds we have mentioned.

It was sought to support the supposed lack of exposure by the Master of his reasoning process by reference to arithmetical calculations. These viewed the $40,000 awarded as equivalent to a loss of not much more than two hours' earnings per week, an apparently very small assessment. This was compared with the $30,000 awarded for past economic loss, which was said to represent a loss of about eight hours' pay per week. The comparison with the past is illusory for two reasons. The first is the inclusion of interest in the past calculation, as indicated above; and the fact that the future assessment is necessarily discounted to achieve a present value of future losses. The second is that, on any reasonable view, the plaintiff's losses soon after the accident were likely to be larger than later, once her situation and her adaptation to her disabilities had stabilised (or may yet stabilise). The suggested appellable smallness of the sum of $40,000 is considered below.

Ground 5 of the grounds of appeal firstly asserts an error of principle in resorting to an intuitive or in globo assessment rather than following the conventional approach of selecting a number of hours between 15 and 38 per week which the plaintiff could work. However, as the Full Court pointed out, there was express evidence from which the Master might have concluded that all improvement in the plaintiff's capacity to cope with work was not exhausted and it is a fact of life that, at least in some cases, when the hope or fear of a litigious result is removed by the finality of the litigation, further adjustment to cope with long term disabilities occurs. More fundamentally, in our view the Master was well-entitled, given all the uncertainties about the plaintiff's future, including those to be inferred from the report of Dr Ewing put forward by the plaintiff and referred to above, to opt for an intuitive, global assessment. In saying this, we do not doubt that, where more precise arithmetical analysis can be undertaken, it is in general desirable that this be done. We agree with the Full Court that, as Stephen J in Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 431 cautioned:

"The concern of courts should not be, as is often said, lest processes of assessment bear an illusory air of precise accuracy but rather lest their outcomes bear the all too real appearance of gross inaccuracy in attaining anything like a proper measure of compensation."

The second error suggested was that the sum awarded was inadequate. There is an interesting debate about whether, in contrast to an award of damages under the head of pain and suffering, an award for future loss of earning capacity is "discretionary" so as to attract the well-known principles that restrain appellate courts from too ready interference with discretionary judgments at first instance: see, for example, the difference of views expressed in Moran v McMahon (1985) 3 NSWLR 700. It may be assumed in the plaintiff's favour that she need not strictly satisfy those tests. Nevertheless, as Barwick CJ pointed out in Wilson v Peisley (1975) 50 ALJR 207 at 209, the less "ponderable the elements of damages under consideration the less likely will there be a case for setting aside the award". Accordingly, to show demonstrable error of the kind asserted, the plaintiff would need to satisfy us that, granted that (as we have held) an intuitive rather than an arithmetical assessment was permissible, the result nevertheless was quite out of the range of a sound approach to such an assessment.

Having regard to the plaintiff's age, the assessment was certainly only a modest one. However, it was by no means an insignificant award. As the plaintiff's own calculations before us show, the amount awarded is the equivalent of about $43.00 per week at 3% until age 65 subject to the usual 15% discount for vicissitudes. The award is consistent, for example, with a view that the plaintiff will be able to handle the work, not very physically demanding, of a social worker on a full time basis, albeit with some pain and difficulty, but with the odd day's or half day's respite. Nothing in the findings that the plaintiff would have an ongoing need for analgesic and anti-inflammatory medications and for assistance with the heaviest aspects of housework is inconsistent with that view. As we have endeavoured to show, there is no lack of a general consistency between such an assessment, the award for past economic loss and that for general non-economic damages. The impugned assessment was within a permissible range.

Conclusion

For these reasons we do not discern error in the Master's approach, nor that of the Full Court. The appeal must be dismissed.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Court

Associate:

Dated:

Counsel for the Applicant:	D Higgs SC and C Whitelaw
Solicitor for the Applicant:	Howes Powrie Rowe
Counsel for the Respondent:	J Maconachie SC and H Marshall
Solicitor for the Respondent:	Barker Gosling
Date of Hearing:	4 November 1998
Date of Judgment:	26 November 1998